Citation Nr: 9837354
Decision Date: 12/22/98 Archive Date: 12/30/98
DOCKET NO. 94-28 517A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to an increased evaluation for service-connected
left femur fracture residuals, currently evaluated as 30
percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. Johnson, Associate Counsel
INTRODUCTION
The appellant is a veteran, having incurred the disabling
injury at issue while performing inactive duty training under
the provisions of 32 U.S.C. § 502 with the Massachusetts
National Guard in April 1961. 38 C.F.R. §§ 3.1, 3.6(a),
(d)(4) (1998).
This matter initially came to the Board of Veterans’ Appeals
(Board) from a September 1993 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Boston,
Massachusetts, which granted an increased evaluation of 30
percent for service-connected left femur fracture residuals.
In March 1994, VA received the veteran’s notice of
disagreement. A statement of the case was issued in July
1994, and the veteran’s substantive appeal was received in
August 1994. A personal hearing was conducted at the RO in
November 1994. A November 1994 rating decision granted
secondary service connection and a separate 10 percent rating
for arthritis of the left knee. The appeal continues. AB v.
Brown, 6 Vet. App. 35 (1993). The veteran was scheduled for
a hearing before a member of the Board, but he failed to
appear.
REMAND
The veteran’s claim is well grounded. 38 U.S.C.A. § 5107(a)
(West 1991). The United States Court of Veterans Appeals
(Court) has held that, when a veteran claims that a service-
connected disability has increased in severity, the claim is
well grounded. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). Therefore, VA has a duty to assist a claimant in the
development of facts pertinent to his or her claim.
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a)
(1998). From a careful review of the evidence in this case,
the Board has determined that there is additional development
that must be completed by the RO in order to fulfill this
statutory duty prior to appellate review of the veteran’s
claims.
Under appropriate circumstances, the duty to assist includes
conducting a thorough and contemporaneous medical
examination. Proscelle v. Derwinski, 2 Vet. App. 629, 632
(1992); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).
Here, the last VA examinations were conducted in October and
November 1995. However, those examiners addressed specific
questions regarding a low back disability the veteran claims
is service-connected, and findings essential for rating the
left femur disability were not reported. Also, when examined
in October 1994, ranges of motion of the left hip were not
recorded. Therefore, the veteran should be afforded an
examination.
In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), the
Court held that ratings based on limitation of motion do not
subsume 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45. It was also
held that the provisions of 38 C.F.R. § 4.14 (avoidance of
pyramiding) do not forbid consideration of a higher rating
based on greater limitation of motion due to pain on use,
including during flare-ups. The guidance provided by the
Court in DeLuca must be followed in adjudicating the
veteran’s increased rating claim.
Service connection is currently in effect for left femur
fracture residuals under the provisions of 38 C.F.R. Part 4,
Diagnostic Code 5255 (1998), which contemplates impairment of
the femur. Given the criteria outlined under Diagnostic Code
5255 it would appear that the Court’s guidance in DeLuca
would not apply with regard to the application of Diagnostic
Code 5255. However, that may not be the case here.
According to an August 1998 opinion (VAOPGCPREC 9-98), VA’s
General Counsel held that if a musculoskeletal disability is
rated under a specific diagnostic code that does not involve
limitation of motion and another diagnostic code based on
limitation of motion may be applicable, the latter diagnostic
code must be considered in light of sections 4.40, 4.45, and
4.59. It was also held that the medical nature of the
particular disability to be rated under a given diagnostic
code determines whether the diagnostic code is predicated on
loss of range of motion, and that reference should be made to
appropriate medical authorities. In this case, it may be
possible to rate the disability under Diagnostic Codes 5250-
5253, which contemplate limitation of thigh motion.
In view of the foregoing, and in order to fully and fairly
adjudicate the veteran’s claim, the case is REMANDED to the
RO for the following actions:
1. The RO should obtain the names and
addresses of all medical care providers
who have recently treated the veteran for
his service-connected left femur fracture
residuals. Private medical records are
to be obtained upon securing the
necessary release. Once obtained, the
records should be associated with the
veteran’s claims folder.
2. The veteran should be afforded a VA
orthopedic examination to determine the
current nature and severity of his
service-connected left femur fracture
residuals. Such tests as the examining
physician deems necessary should be
performed. The examination should
include complete measurements of the
range of motion of the left hip and
knee. All findings should be reported.
The orthopedic examiner should also be
asked to determine whether there is
weakened movement, excess fatigability,
or incoordination attributable to the
service-connected disability; and if
feasible, these determinations should be
expressed in terms of the degree of
additional range of motion loss due to
any weakened movement, excess
fatigability, or incoordination. The
orthopedic examiner should be asked to
express an opinion on whether pain could
significantly limit functional ability
during flare-ups or repeated use over a
period of time. This determination
should also, if feasible, be portrayed
in terms of the degree of additional
range of motion loss due to pain on use
or during flare-ups. The examiner
should also record any objective
displays of pain. The examiner should
identify manifestations of the veteran’s
service-connected disabilities and
distinguish those manifestations from
any coexisting nonservice-connected
disabilities. The claims folder should
be made available to the examiner for
review in conjunction with the
examination, and the examiner should
acknowledge such review in the
examination report.
3. The RO should adjudicate the claim
of entitlement to an increased
evaluation for service-connected left
femur fracture residuals in light of
DeLuca v. Brown, 8 Vet. App. 202 (1995).
Consideration should be given to the
provisions of 38 C.F.R. §§ 3.321(b),
4.40, 4.45 (1998), and VAOPGCPREC 9-98.
If the determination remains adverse to
the veteran, he and his representative
should be provided a supplemental
statement of the case that includes a
summary of additional evidence
submitted, any additional applicable
laws and regulations, and the reasons
for the decision. The veteran and his
representative should be afforded the
applicable time to respond.
Thereafter, subject to current appellate procedures, the
case should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until he is further informed. The purpose of this
REMAND is to obtain additional information and to afford the
veteran due process of law. The Board intimates no opinion,
either factual or legal, as to the ultimate conclusion
warranted in this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
J. E. Day
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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